R v Reeves & Thorne

[2001] QCA 110

[2001] QCA 110

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
BYRNE J

CA No 343 of 2000
CA No 344 of 2000

THE QUEEN

v.

MARK SEDDON REEVES and
RODGER JOHN THORNE  Appellants

BRISBANE

..DATE 22/03/2001

JUDGMENT

WILLIAMS JA:  The Court has before it applications by Mark Seddon Reeves and Rodger John Thorne for an order that the time for appealing against their conviction on a charge of conspiring to import a commercial quantity of cannabis be extended. 

The two applicants, together with persons by the name of Causevic, Pericic and Tolja pleaded not guilty to a charge of conspiracy to import a commercial quantity of cannabis.  All were represented by lawyers at the trial which lasted for a period of some seven weeks.  The transcript of the trial occupies some 2,000 pages.

Reeves and Thorne, along with Causevic and Pericic, were convicted by the jury on 18 March 2000 and they were sentenced on 21 March 2000.  The applications in question were not filed until 30 November 2000.  They are dated
25 November 2000.  Amongst the material relied on by each of the applicants is a letter dated 18 April 2000 from a  solicitor, who I would infer was involved in instructing counsel for them at the trial.

That letter informed Reeves, to whom it was addressed, that the time for appealing had expired, but expressed the view that an application for an extension of time would probably be granted.  The letter also indicated some possible grounds of appeal against the conviction.  Notwithstanding receipt of that letter on 18 April, the applications were not filed until 30 November.

The applicants seek to explain that delay by referring to attempts on their part to investigate appeal funding, to attempts to obtain if possible legal aid for purposes of the appeal and to time taken in obtaining necessary documents, including Court transcripts, to support their appeal.

In my view, there is no satisfactory explanation for such a long delay in making an application for an extension of time.  But nevertheless, it would have to be conceded that if there was a ground of appeal which was likely to succeed that could overcome that delay.  In consequence, it is necessary to refer to the matters which each applicant would seek to agitate on an appeal; the grounds relied on are the same in each case.

The first ground alleges that the learned trial judge erred in admitting evidence as to the "last time".  In order to appreciate the significance of this ground and other grounds relating to the admissibility of evidence, it is desirable to say a little more about the prosecution case at trial.  The prosecution case was essentially that a person named McLean devised a plan for the importation of cannabis into Australia and then recruited the persons who were the defendants at the trial to be active participants in carrying out that importation.

McLean's name did not appear on the indictment because, although his principal activities with respect to the offence with which this Court is concerned took place in Queensland, he was ultimately charged in New South Wales with respect to this offence and also some other offences.  In order to prove the conspiracy, the prosecution relied on numerous conversations between the accused persons and McLean; in many instances those conversations were the subject of a recording. 

In the course of the conversations so recorded, various of the accused persons and McLean used the expression, "the last time".  The prosecution did not specifically allege that it was a relevant fact so far as the conspiracy was concerned that there had been an earlier importation.  Rather, the words used by the conspirators were admitted into evidence to show what they were proposing for the future.  In other words, their reference to what happened "the last time" was used as an indication as to what was to occur the next time.

Included in the respondents' outline is a quotation from the tape which is designated 14/1 and dated 2 September 1996.  It is a tape of a conversation between McLean and the present applicant, Reeves.  In the course of that, it is Reeves himself who uses the expression "last time".  The conversation is primarily concerned with a boat, the size of the boat, and how it could be loaded with "the stuff".  It is in that context that Reeves is recorded as saying, "It did work out last time.  Being that big I didn't think you could do it at night, that's why I rang you the week before." 

Given that this was a conspiracy case, conversations along the lines of that I have just quoted were correctly admitted into evidence.  At the trial the two present appellants and Causevic were represented by Mr Martin of senior counsel and the co-accused, Pericic, was represented by Mr Cuthbert, a very experienced criminal barrister.

There is nothing in any of the material presently before the Court to suggest that there was any error by the learned trial Judge in his summing-up relating to the use that could be made by the jury of the conversations between the co-conspirators.

The second ground of appeal which the applicants seek to agitate is that the learned trial Judge allowed transcripts of the recorded conversations to go to the jury.  It appears that a number of the tapes were of poor quality; there was some reference made in the course of argument before this Court to the fact that ear phones were used on occasions in order to make audible what was recorded.  However, it seems clear that the learned trial Judge instructed the jury on a number of occasions that the evidence was "the spoken word that you hear on the tape".

They were given the transcripts to assist them in their analysis of the evidence on the tapes.  The point taken by the present applicants is that the jury, when considering their verdict, may have taken the easy course of referring only to the transcripts and not listened to the tapes.  There is no reason why this Court should now assume that the jury did not follow the directions that they were clearly given by the trial Judge on a number of occasions.  In the circumstances there is, in my view, no prospect of the applicants succeeding on a ground of appeal based on the fact the transcripts of the tapes were with the jury.

The next two grounds of appeal also relate to the admissibility of evidence.  This is primarily evidence of McLean's plan; in one instance established by conversations between McLean and Fisher and evidence from Fisher who apparently was an indemnified witness.

As I have already said, this was part of the evidence of the conspiracy.  The prosecution had to prove McLean's plan and then prove that the various accused were parties to the implementation of that plan.  Though, for example, Fisher did not know anything about the persons who were actually on trial here, that was of no consequence.

No proper basis is established for challenging the admissibility of that particular evidence.  The other point raised by the applicants in their material relates to the fact that details of Operation Niacin, the operation which resulted in the arrest of these applicants and their co-offenders, were apparently at some stage put on the Internet.  That gave rise to the thought that members of the jury may have been able to obtain some information as to Operation Niacin. 

It is relevant for present purposes that the co-accused Pericic applied for an extension of time to appeal against his conviction based on that fact, that is, that details of Operation Niacin were available on the Internet.  That application for an extension of time to appeal was dealt with by the Court of Appeal on 19 October 2000 and for reasons which were then given the extension of time was refused.

In his reasons for judgment Justice Davies pointed out that there was no basis for concluding that the fact that some details of Operation Niacin were on the Internet was likely to have resulted in the trial of the accused persons being compromised.  I can see no basis for this Court departing from what was said by the Court on that occasion.

It follows that there is no substance in any of the grounds of appeal which the applicants would seek to agitate if they were granted an extension of time.  In the circumstances I would on each application refuse to extend time.  Each application should be dismissed.

McPHERSON JA:  I agree.  I would not have been specially concerned that the time for appealing had passed if I had thought that there was a plausible ground to be argued on appeal.  But I am not persuaded that there is.  The reasons delivered by Justice Williams demonstrate why that is so.  None of the points or arguments raised before us has any prospect of success in the event that the appeals were permitted to proceed.

The application in the case of each applicant for extension of time within which to appeal against conviction should, in my opinion, be refused.

BYRNE J:  I agree with the order proposed, and with the reasons of the presiding Judge and Justice Williams.

McPHERSON JA:  Accordingly, the applications for an extension of time within which to appeal are dismissed.

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